Law & the Courts

The Supreme Court Must Not Let Google’s Theft of Intellectual Property Stand

Google logo at the Viva Tech summit in Paris, France, in 2018. (Charles Platiau/Reuters)
As a legal showdown with software-development company Oracle heads to the High Court, the stakes are clear.

Big Tech has changed the way we live, and no tech company has been more invasive about it than Google.

From listening to our conversations to tracking our movements to accessing our health data, Google is rapidly becoming omnipotent. As former Google CEO Eric Schmidt said, “We don’t need you to type at all. We know where you are. We know where you’ve been. We can more or less know what you’re thinking about.” What’s more, Google has intentionally misled consumers: Recent reporting from the Wall Street Journal revealed that the company does, in fact, change and editorialize search results — something they have repeatedly denied for years.

Creepy as its invasions of user privacy lies to the public are, it would be one thing if Google were playing by the rules. But the company has not proven itself a trustworthy actor in that regard, either. As it’s grown larger, it has begun to break the law with increasing impunity, daring its competitors to engage in years-long, expensive lawsuits and betting that policymakers are too slow to keep up.

Google is currently embroiled in a lawsuit with the software-development company Oracle, over what Oracle claims is outright theft of its intellectual property. If Google prevails, the outcome will fundamentally change digital-copyright protections as we know them.

At the center of the dispute are 11,500 lines of code that Google is accused of copying from Oracle’s Java programming language for use in its Android mobile operating system, the most popular mobile OS in the world. According to the legal filings, Google initially approached Oracle about licensing Java for Android after trying and failing to write its own code. When negotiations stalled, Google simply copied the code anyway. Oracle sued Google in 2010, alleging that Google’s use of the code violated copyright law. Google doesn’t dispute its wholesale copying of the code. Rather, it argues that its theft of the code falls under the “fair use” doctrine of copyright law, because it has sufficiently transformed the code by placing it in a new context — namely, a mobile OS.

That is not exactly clear cut, however. Oracle has some evidence that it had, in fact, written Java code for mobile devices, but had simply not commercialized the development. Moreover, Google’s argument that its use of Oracle’s code is original simply because it’s on a different platform is something of a stretch. As one of Oracle’s lawyers argued, “You cannot take the most recognizable part of a short story, adapt it into a film, and then defend that by saying, ‘You were in books, we were in films.’”

Oracle has a good case. It will soon be heard by the Supreme Court, which will decide if huge tech firms such as Google are allowed to simply swipe software code without consequence. If permitted, such action will undoubtedly chill software development. After all, no one wants to pour resources into the development of new code when it will ultimately just be copied by competitors.

Google’s innovations have changed the world, in many cases for the worse. As it grows ever larger, it cannot be allowed to bend our rights to its will. It has already eroded the boundaries of our legal privacy. It should not be permitted to rewrite intellectual-property law, as well.

Rachel Bovard is a senior adviser to the Internet Accountability Project.

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